1988 (1) TMI 363 - SC - Indian Laws

Summary

Issues Involved:
1. Abatement of Suit: Whether the suit for damages against a counsel abated following the death of the plaintiff.
2. Nature of the Suit: Whether the suit was founded on torts or on contract.
3. Legal Representatives' Rights: The right of legal representatives to continue the suit under Section 306 of the Indian Succession Act, 1925, and Order XXII Rules 1 and 3(1) of the Code of Civil Procedure.
4. Liability of Legal Practitioners: The liability of legal practitioners for negligence under the Legal Practitioners (Fees) Act, 1926.

Detailed Analysis:

1. Abatement of Suit:
The primary issue was whether the suit for damages instituted against a counsel abated due to the death of the plaintiff. The appellant argued that the suit abated as per the maxim "Actio Personalis cum moritur persona," which implies that personal actions die with the person. The District Munsif upheld this objection, but the High Court allowed the legal representatives to continue the suit. The Supreme Court noted that Section 306 of the Indian Succession Act, 1925, which corresponds to Section 89 of the Probate and Administration Act, 1881, allows executors and administrators to continue actions of or against a deceased person except for causes of action for defamation, assault, or other personal injuries not causing death. The Court emphasized that the interpretation of "other personal injuries" should be read ejusdem generis with "defamation and assault." The Court concluded that the suit's abatement depends on whether it was based on torts or contract.

2. Nature of the Suit:
The Supreme Court did not express a definitive opinion on whether the suit was founded on torts or contract, as this aspect was not considered by the Trial Court or the High Court. The appellant contended that the suit was based on torts due to claims of loss of reputation, mental agony, and worry. In contrast, the respondents argued that the suit was founded on contract, citing breach of engagement conditions leading to eviction and monetary loss. The Court referred to the summary of the plaint, which included claims for compensation for monetary loss and expenses incurred due to the appellant's alleged negligence. The Court left it to the Trial Court to determine whether the suit was based entirely on torts, on contract, or partly on both.

3. Legal Representatives' Rights:
The Court discussed the rights of legal representatives to continue a suit filed by a deceased plaintiff under Order XXII Rules 1 and 3(1) of the Code of Civil Procedure. The Court noted that legal representatives stand on par with executors and administrators regarding their right to seek impleadment to continue the suit. The Court cited the decision in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, which held that legal representatives could not continue a suit for defamation after the plaintiff's death unless the cause of action had merged into a decree in favor of the plaintiff. The Court concluded that the suit's abatement depends on whether it was founded on personal injuries or on loss suffered by the estate.

4. Liability of Legal Practitioners:
The Court referred to the Legal Practitioners (Fees) Act, 1926, which states that legal practitioners are not exempt from liability for negligence in the discharge of their professional duties. The Act allows legal practitioners to sue for their fees and be sued for negligence. The Court also discussed English cases where solicitors were held liable for negligence and breach of duty. However, the Court noted that the present case did not pertain to the liability of legal practitioners but to the abatement of the suit due to the plaintiff's death.

Conclusion:
The Supreme Court dismissed the appeal and restored the suit to the Trial Court for disposal in accordance with law. The Court directed the Trial Court to determine the nature of the suit based on the materials and evidence presented. If the suit is entirely based on torts, it would abate. If it is based on contract or partly on both, the relevant parts would survive. The parties were directed to bear their respective costs.